Terms of Service
1.1 In this Agreement, the following words have the following meanings:
“Aggregated Customer Data” means data collected by Photospire for the purpose of providing the Professional Services for, and/or Photospire Products to, the Customer that can no longer be linked to the Customer (for example, Customer Data that does not identify or permit identification of a client).
“Agreement” comprises the (a) the Order Form, (b) these Terms of Service (“ToS”), together with the Schedules, and (c) any SoW.
“Associate” means in respect of any person to whom the term Associate refers a company, corporation or partnership or other business entity (“entity”) which is directly or indirectly controlled by or under substantially common control with or controls (as the case may be) the person so referred to and for this purpose “control” means the power of an entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership, agreement or other document regulating the entity in question) that the entity’s affairs are conducted in accordance with its wishes.
“Banner” means any ad promoting the products and/or services of the Customer;
“Customer Content” means images, graphics, text, data, videos, links, audio, comments or other creative elements supplied by the Customer to Photospire (by data feed, via the Cloud Service or otherwise) and/or uploaded, stored or otherwise made available on the Cloud Service.
“Campaign” means a coordinated series of linked advertisements with a single idea or theme.
“Campaign Term” means the period of time starting and ending on the dates set out in Annex A of the Order Form.
“Cloud Service” the cloud service described in the Spec Sheet (and identified in an executed Order Form, and/or SoW) and the Platform.
“CTV Advertising” means ads displayed on connected television or on any other device connected to the internet.
“Customer Data” means: (i) data that is provided to Photospire by or on behalf of Customer in connection with any Order Form (including, but not limited to, customer lists, data management platform (“DMP”) transfers, matching data used for audience guarantees) or (ii) data Photospire collects through Photospire tags on the Customer’s properties which includes any information that can be attributed to a user via cookies or other technologies that record events related to users’ activity on the Customer’s properties (such as the number of pages viewed, the products the user viewed and user searches).
“DSP” means any company which provides integrated media buying solutions based on cookie data intelligence and operates a demand side platform.
“Effective Date” is the date set out in the Order Form.
“Fees” any and/or all of the fees stated in an executed Order Form and/or SoW and payable by Customer to Photospire.
“Forbidden Jurisdiction” means a jurisdiction in which it is illegal or otherwise unlawful for the Customer to provide Gambling Services (whether to residents, citizens or otherwise).
“Gambling Service(s)” means the provision of a sports or event wagering service or game of skill and chance combined (including casino banker’s games), peer to peer game or random number generator game service (including but not limited to via remote communications such as online or via telephone).
“Initial Term” means the period of time stated in the Order Form, starting on the Effective Date.
“IPRs” patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer Apps, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
“Materials” Photospire documentation and materials relating to the Cloud Service provided to Customer.
“Order Form” additional order form associated with this agreement.
“Person” means any natural person, corporation, limited liability company, general partnership, limited partnership, proprietorship, other business organisation, trust, union, association, and/or government authority (including public international organisations).
“Personal Data” means information relating to identified or identifiable natural persons; that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked to, directly or indirectly, a particular individual, consumer, data subject, or household; or that is defined as “personally identifiable information,” “personal information,” “personal data,” or similar term under Data Protection Laws (as defined above).
“Photospire” means Photospire Limited (company number 10004081), trading as Spirable, whose registered office is Cannongate House, 62-64 Cannon Street, London, England, EC4N 6AE and/or its Associate.
“Photospire Data” means data related to the Photospire ad serving activity such as the number of ads displayed to users and aggregated client data that does not identify or permit identification of a client;
“Photospire Products” the Cloud Service, the Training Services, the Professional Services, the Materials and/or Support.
“Photospire Network” means a network of publishers on supported interactive properties, used for the display of Banners, where the displaying publisher is automatically chosen in accordance with a specification selected by the Customer in a Order Form.
“Photospire Sourced Data” means aggregated data provided by third parties independently of the provision of the Photospire Products to the Customer and may include publisher data.
“Photospire Technology” means the technology used by Photospire to provide the Professional Services and/or the Photospire Products.
“Platform” the Photospire cloud platform used to provide the Cloud Service, including applications, software, hardware, databases, APIs, and Updates.
“Pre-Contract Questionnaire” means the pre-contract questionnaire completed by the Customer prior to entering into this Agreement.
“Professional Services” the professional services described in the Spec Sheet and/or identified in an executed Order Form, and/or a SoW, which may include the Programmatic Marketing Services and CTV Advertising (to the extent that it is not included as part of Programmatic Marketing Services).
“Programmatic Marketing Service” means the programmatic marketing service as more fully described in clause 4 of these ToS, which shall include CTV Advertising where such ads are bought programmatically.
“Sanctioned Person” means at any time any person: (a) listed on any Sanctions-related list of designated or blocked persons; (b) resident in or organised under the laws of a country or territory that is the subject of comprehensive restrictive Sanctions from time to time (which includes, as of the date of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea region); or (c) majority-owned or controlled by any of the foregoing.
“Sanctions” means those trade, economic and financial sanctions laws, regulations, embargoes, and restrictive measures (in each case having the force of law) administered, enacted or enforced from time to time by (a) the United States (including without limitation the Department of Treasury, Office of Foreign Assets Control), (b) the European Union and enforced by its member states, (c) the United Nations, (d) Her Majesty’s Treasury, or (e) other similar governmental authority have jurisdiction over any party to this Agreement from time to time.
“Site(s)” means those website apps or other digital properties on which Banners are displayed.
“Spec Sheet” the specifications of the Photospire Products in the Schedules.
“Support” the technical support described in the technical support policy (Schedule 3).
“Term” the Initial Term and any successive automatic renewals thereof of 12 months each (“Renewal Periods”).
“Territory” United Kingdom.
“Training Services” the training services offerings described in the Spec Sheet, and identified in an executed Order Form, and/or SoW.
“Updates” bug fixes, patches, improvements, enhancements, modifications, changes, workarounds, and/or upgrades to new versions that Photospire generally makes available at no additional charge to its customers who are current on payment of all Fees.
“User” an employee or independent contractor of Customer who is allowed to access and/or use the Photospire Products subject to and in accordance this Agreement, but it excludes a competitor of Photospire.
“Working Day” Monday to Friday except English public holidays (including English bank holidays).
1.2 Unless the context otherwise requires: (i) words importing a gender include every gender and references to the singular include the plural and vice versa, and (ii) any words following the terms including, include, in particular, for example, such as, e.g. or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.3 This Agreement shall be binding on, and enure to the benefit of, the parties and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.4 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.5 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2.1 Customer accepts full and entire responsibility for its selection of the ordered Photospire Products.
2.2 Provided that Customer is current on payment of all Fees and in compliance with this Agreement and applicable law, Photospire will provide the ordered Photospire Products.
2.3 Customer agrees to promptly undertake and fulfil the customer actions (or any other requirements), set out in the Spec Sheet, an executed Order Form, SoW and/or as specified by Photospire in writing from time to time. The Customer agrees to comply with all technical specifications, which may include the following operations: (i) including software code, tags and cookies supplied by Photospire on the Customer’s properties (including on its websites and, if applicable, e-mail newsletters); (ii) supplying Photospire with catalogue files of the Customer’s products and/or services to be included in Banners; and (iii) supplying Photospire with the Customer’s logos and other Customer Content to be displayed in the Banners.
2.4 Customer shall not (or attempt to) access and/or use the Photospire Products (i) for the purpose of building a competitive product and/or service, (ii) copying its features and/ UI/UX, and/or (iii) use the Photospire Products, and/or permit them to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Photospire’s prior written consent.
2.5 Customer must not allow and/or permit a competitor of Photospire to access and/or use the Photospire Products.
3.1 The provisions of this clause 3 shall apply if the Photospire Product to be provided to the Customer under this Agreement includes the Cloud Service. Subject to and in accordance with the terms of the Agreement, and in consideration of the Fees, Photospire grants to Customer a revocable, non-exclusive, non-transferable, non-sublicenseable right for the period of the Term to access and/or use the Cloud Service and Materials in the Territory for its internal business purposes. This right does not include a right for Customer to allow access and/or use of the Cloud Service and Materials by, or for the benefit of, any Person other than a User.
3.2 Customer must not access and/or use the Cloud Service in any way that (i) is (or may be) in breach of the Agreement and/or applicable laws and regulations, (ii) could, may (or does) damage, disable, overburden, impair, compromise and/or disrupt the Cloud Service, including its security, integrity, and/or performance, and/or (iii) could, may (or does) interfere with other Cloud Service users and/or any other users’ Accounts.
3.3 Customer must not access and/or use the Cloud Service in any way to (i) send unsolicited communications and/or video content, junk mail, spam, or other forms of duplicative or unsolicited messages, (ii) store and/or transmit any content that infringes any Person’s privacy or IPRs, (iii) post, transmit, upload, link to, send and/or store any content that is unlawful, hateful, abusive, obscene, harmful, threatening, defamatory, obscene, infringing, harassing, offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or age or in a way that is otherwise illegal, causes damage or injury to any Person or property, and/or infringes a Person’s rights (including IPRs and/or privacy rights), and/or (iv) post, transmit, upload, link to, send and/or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.
3.4 Customer shall not (or attempt to) (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, provide a bureau service or otherwise commercially exploit the Cloud Service and Materials, and/or allow and/or permit the Cloud Service and Materials to become the subject of any charge, lien and/or encumbrance.
3.5 Customer shall use the Cloud Service and Materials for the purpose set out in this Agreement and for no other purpose. Changes in the purpose and/or the scope of use must be approved beforehand by Photospire. Additional fees shall be payable by Customer on any such changes at Photospire’s then applicable rates.
3.6 Without affecting any other right or remedy available to it, if Customer breaches clause 9.2(ii), Photospire has the right to (i) remove from the Cloud Service any such content, and/or (ii) suspend immediately Customer’s access and/or use of the Cloud Service without giving notice to Customer
4.1 The provisions of this clause 4 shall apply if the Photospire Product to be provided to the Customer under this Agreement includes the Programmatic Marketing Services and/or CTV Advertising. All advertisements accepted for publication by Photospire through the provisions of its Programmatic Marketing Service are accepted subject to this Agreement.
4.2 Photospire shall use reasonable endeavours to display and transmit the Banners during the Campaign Term in accordance with the terms of the Order Form.
4.3 If the Banners are not transmitted or displayed in accordance with the agreed terms set out in the Order Form during the Campaign Term for reasons other than the default of the Customer, Photospire shall use reasonable endeavours to transmit or display the Banners as soon as reasonably possible following the end of the Campaign Term.
4.4 In the event that Banners are not transmitted/displayed in accordance with the agreed terms set out in the Order Form during the Campaign Term as a result of the default of the Customer, Photospire reserves the right to make additional charges in respect of the period of delay.
4.5 The Customer acknowledges and accepts that the Banners are displayed on the Photospire Network and that Photospire has absolute discretion as to which publishers will form part of the Photospire Network, how often the Banners will be displayed and how priority is to be governed between different clients. The Customer acknowledges that Banners may be displayed next to banners of its competitors. Photospire uses reasonable endeavours not to display Banners on websites or other media that are of pornographic, defamatory, obscene or illegal nature, but the Customer acknowledges that, should Banners appear on such media, the Customer’s sole and exclusive remedy is set forth in the following sentence. In the event that the Customer notifies Photospire in writing that Banners are being displayed on such media, Photospire will promptly remove the Banners (or promptly notify the relevant publisher to remove) and/or provide makegoods.
4.6 The Customer shall submit Customer Content at least five (5) Working Days before the commencement of the relevant Campaign in accordance with Photospire’s criteria and specifications from time to time (including content limitations, agreed technical specifications, Policies, and material due dates).
4.7 If Customer Content is submitted later than 12 noon on the day before the relevant Campaign is due to begin, Photospire reserves the right to make reasonable charges in addition to those specified in the relevant Order Form.
4.8 Photospire reserves the right within its discretion to reject or remove from the Site(s) any Banners where the Customer Content or the site to which the Banner is linked do not comply with its Policies, or that in Photospire’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, Photospire reserves the right within its discretion to reject or remove from the Site(s) any Banners where the Customer Content or the site to which the Banner is linked are or may bring disparagement, ridicule, or scorn upon Photospire.
4.9 If Customer Content is either damaged, not to Photospire’s specifications or otherwise unacceptable in Photospire’s reasonable opinion, Photospire shall use reasonable endeavours to notify the Customer within five (5) Working Days of its receipt of such Customer Content and the Customer shall make the necessary changes as soon as is practically possible and in any event within five (5) Working Days of receipt of such notice.
4.10 Photospire has no liability to the Customer in respect of any claim whatsoever, whether it relates to IPRs or not, to the extent that it relates to: (i) the use of the Banners and/or Customer Content in combination with programs or data not supplied by Photospire; (ii) the use of anything other than the latest unaltered release of the Photospire Products (or any part thereof) provided by Photospire to the Customer; or (iii) where the Banner(s) and/or Customer Content have been subject to any alteration or modifications not authorised by Photospire in accordance with the terms of this Agreement.
4.11 If the Customer wishes to postpone or extend the Campaign Term, Photospire shall consider such a request in good faith but shall have no obligation to consent to such postponement or extension. Any acceptance of such postponement or extension shall require immediate pre-payment of the Fees (if not already done so) and/or immediate pre-payment of any additional fees.
Cancellation and revision
4.12 Either party may cancel the Campaign element of any Order Form with thirty (30) days’ prior written notice during the Campaign Term, unless the Campaign or any element thereof is designated as non-cancellable on the applicable Order Form. If either party cancels the Campaign element of the Order Form with thirty (30) days’ notice in accordance with this clause, the Customer shall only be liable to pay for the Programmatic Marketing Service provided from commencement of the Campaign Term up until the date of termination.
4.13 In the event that the Customer seeks to revise the Campaign element of any Order Form, the Customer must provide a written request thirty (30) days’ prior to the intended date of the requested revision. In the event that Photospire accepts such request (which it may accept or reject in its absolute discretion), any billable rates shall automatically revert to the current published rate which Photospire shall advise the Customer of from time to time.
4.14 If the Customer cancels the Campaign element of any Order Form prior to a Campaign going live, Photospire shall be entitled to recover a reasonable sum for time spent developing the Campaign on the Customer’s behalf, and such sum shall be calculated in accordance with the Photospire’s rates set-out in the Order Form.
Measurement and performance report
4.15 Photospire measures, through its servers, the number of impressions and/or clicks and/or other metrics necessary for calculating the Fees relating to Programmatic Marketing Services. Customer accepts that Photospire measurements are final and shall prevail over any other measurements.
5.1 Customer shall pay to Photospire the Fees. All Fees due hereunder shall be due and payable within 30 days of the invoice date. Fees are non-refundable. All sums payable under this Agreement are exclusive of VAT or any relevant local sales taxes, for which Customer shall be responsible and they are non-refundable. Photospire reserves the right to charge interest on all overdue payments at a rate of 1.5% per annum above the base lending rate of Bank of England from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount. All amounts due under this Agreement shall be paid in cleared funds and in full without any set-off, counterclaim, deduction or withholding (other than any deduction and/or withholding of tax as required by applicable law).
5.2 Photospire shall allocate Customer marketing spend as set out in the Order Form (and, in respect of the Programmatic Marketing Service, such allocation shall be through a DSP, or direct purchases from publishers’ sites), with the intention of meeting the agreed target for the Customer as set out in the Order Form after fees, costs, and Photospire margins (as determined by Photospire on a Campaign by Campaign basis taking into account factors including the success of the relevant Campaign) have been deducted.
6.1 A party that receives (“Receiving Party”) Confidential Information from the other party (“Disclosing Party”) whether before or after the Effective Date shall, subject to clause 6.3 and 6.4 (i) keep the Confidential Information secret and confidential, (ii) not disclose the Confidential Information to any other Person other than with the prior written consent of the Disclosing Party or in accordance with clause 6.2, (iii) not use the Confidential Information for any purpose other than the performance of its obligations or the enjoyment of its rights under this Agreement (“Permitted Purpose”), and (iv) use the Confidential Agreement for the Permitted Purpose.
6.2 The Receiving Party may disclose Confidential Information to its own officers, directors, employees, and advisers who reasonably need to know for the Permitted Purpose (each a “Permitted Third Party”), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this clause 6 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to this Agreement). The Receiving Party shall ensure and procure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this clause 6. The Receiving Party may disclose Confidential Information to a court, governmental, regulatory authority or agency of a competent jurisdiction or as required by applicable law.
6.3 The Customer acknowledges Photospire’s right to publicise this Agreement. The Customer agrees to support Photospire in publicising this Agreement for marketing and investor relations purposes through the issue of joint press releases, and any other marketing activity reasonably requested by Photospire.
6.4 Without limitation to clause 6.3, either party may, after consultation with the other party (to the extent that such consultation is practicable), make an announcement concerning this Agreement if required by: (i) law; or (ii) any securities exchange or regulatory or governmental body to which that Party is subject, wherever situated, whether or not the requirement has the force of law.
7.1 Each party shall be independently responsible for compliance with its obligations under Data Protection Laws. The Customer and Photospire acknowledge that under European Data Protection Laws, where Photospire processes Personal Data in connection with this Agreement on behalf of the Customer, the Customer is the data controller and Photospire is the data processor and, for the purposes of this Agreement:
(i) the types of Personal Data so processed are: internet connection data, browsing data, online identifiers, device/technical data and/or betting activity (if applicable) and the categories of data subjects are the Customer’s customers or the Customer’s prospective customers; and
(ii) the nature/purpose of the processing is to enable Photospire to carry out the Programmatic Marketing Services (which form the subject matter of the processing) and the duration of the processing shall be no more than thirteen (13) months after collection.
7.2 The Customer acknowledges that it is the Customer’s sole responsibility to provide any required notifications to, and obtain any necessary approval, authorization, or consent from its customers for Photospire to process customer Personal Data for the purposes of targeting those customers with online advertising. The Customer shall ensure that all such notification, and approval, authorization, or consent is valid under Data Protection Laws and shall notify Photospire as soon as possible when any such approval, authorization, or consent is withdrawn. Photospire hereby puts the Customer on notice that a failure by the Customer to obtain sufficient approval, authorization, or consent for Photospire to process the Customer’s customers’ Personal Data and target the Customer’s customers with online advertising will infringe the Data Protection Laws and will be an infringement for which the Customer is solely responsible.
7.3 Photospire shall, in relation to any Personal Data processed on behalf of the Customer in connection with this Agreement:
(i) process that Personal Data only on written instructions of the Customer;
(ii) keep the Personal Data confidential;
(iii) comply with the Customer’s data protection policy and any data retention guidelines in force from time to time;
(iv) comply with the Customer’s reasonable instructions with respect to processing the Personal Data;
(v) not transfer any Personal Data that originated inside the UK and/or European Economic Area (“EEA”) to a jurisdiction outside of the EEA without the Customer’s prior written consent, other than as permitted under clause 7.5;
(vi) assist the Customer in responding to any data subject access request and to ensure compliance with its obligations under Data Protection Laws with respect to security, breach notifications, privacy impact assessments and consultations with supervisor authorities or regulators;
(vii) notify the Customer without undue delay on becoming aware of a Personal Data breach or communication which relates to Photospire or Customer’s compliance with Data Protection Laws;
(viii) at the written request of the Customer, delete the Personal Data on termination of this Agreement unless required by Data Protection Laws or legal obligation to store the Personal Data;
(ix) maintain complete and accurate records and information to demonstrate compliance with this clause and allow for audits by the Customer or the Customer designated auditor; and
(x) only engage third parties to process Personal Data on behalf of the Customer (“Subprocessors”) appointed in accordance with clause 7.9.
7.4 Photospire shall ensure that it has in place appropriate technical or organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate o the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures. Such measures may include, where appropriate:
(i) pseudonymising and encrypting Personal Data;
(ii) ensuring confidentiality, integrity, availability and resilience of its systems and services;
(iii) ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident; and
(iv) regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it.
7.5 In accordance with clause 7.3(v) above, the Customer consents to Photospire transferring the Personal Data outside of the UK and/or EEA to (i) our employees in Colombia under approved contractual clauses between Photospire and Genius Sports Services Colombia S.A.S; and (ii) our third party service providers based in the United States of America under standard contractual clauses.
7.7 The Customer acknowledges that, in order to comply with Data Protection Laws, the Customer needs to take certain steps to ensure that users of its website know that the Cookies exist, and to ensure that users accept Cookies where required by Data Protection Laws. Therefore, the Customer undertakes that its website:
(i) includes: (i) a clear and comprehensive explanation as to what the Cookies are doing and why; and (ii) a consent management platform, that allows its users to freely give or withdraw consent to store the Cookie on the user’s device; and
7.8 Where a party is deemed to be acting as a service provider as defined by Data Protection Law with respect to the processing of Personal Data pursuant to this Agreement, such party will not sell, retain, use, or disclose such Personal Data for any purpose other than as specifically authorized under this Agreement or as otherwise permitted by law. To the extent that disclosure of Personal Data between Customer and Photospire is deemed to be a “sale” under Data Protection Laws, each party shall be independently responsible for compliance with its obligations and provide assistance to the other party as necessary for that party to address its obligations under Data Protection Laws. Where Photospire receives a “Do Not Sell” or similar request from a consumer (either directly or as communicated by Customer), Photospire shall only process the Personal Data associated with such consumer as permitted by the Data Protection Laws. The parties agree to cooperate to effectuate such consumer requests. The parties agree to negotiate in good faith any additional or modified contract terms necessary to address any modifications, amendments, or updates to Data Protection Laws.
7.9 Customer hereby consents to Photospire appointing its Associates as Subprocessors for the purposes of clause (x). In the event that Photospire wishes to appoint a new Subprocessor it will notify the Customer of such Subprocessor and the Customer will have 3 days to object to such appointment and any objection must be accompanied by evidence to support the unsuitability of the Subprocessor. Where the Customer validly objects to the appointment of a Subprocessor, Photospire will use reasonable endeavours to source an alternative or to conduct the relevant processing without the use of such Subprocessor. If Photospire is unable to source an alternative Subprocessor and cannot conduct the relevant processing without a Subprocessor, it will have the right to terminate this Agreement immediately and without liability upon written notice. Photospire will ensure that all Subprocessors are bound by terms equivalent (as appropriate) to this clause 15 and will remain responsible for any breach thereof.
8.1 The provisions of this clause 8 shall apply if, at any time during the Term, the Customer or any of its Associates provides Gambling Services.
8.2 The Customer acknowledges and agrees that: (i), as a provider of Gambling Services, it is required to comply with all applicable betting, gambling and advertising laws and regulations; and (ii) it has taken and will take all necessary steps to ensure that the display of Banners on the Sites is not illegal or actionable for any reason in any territory and shall comply with all applicable legislation, rules and regulations including, for the avoidance of doubt, any applicable advertising and/or financial services standards and codes.
8.3 The Customer hereby warrants, represents and undertakes to Photospire that:
(i) the Customer (and/or each relevant Associate (as applicable)) is, and will continue throughout the Term to be, regulated as a bookmaker and that it has, and will continue throughout the Term to have, all necessary rights: (i) to operate in all territories in which it conducts business; and (ii) for Banners to be displayed in all territories in which it requests Photospire to display such Banners in accordance with this Agreement, and the Customer will promptly inform Photospire if any such licence, consent, permission, or approval is withdrawn, revoked, suspended, or of any matter of which is likely to lead to the withdrawal, revocation, or suspension of any such licence, consent, permission, or approval;
(ii) neither the Customer nor any of its Associates will provide anyone located in a Forbidden Jurisdiction with access to a Gambling Service;
(iii) neither the Customer nor any of its Associates will knowingly accept from anyone located in a Forbidden Jurisdiction (whether a resident, citizen or otherwise) in consideration of the provision of a Gambling Service: (i) credit or the proceeds of credit (including credit cards); (ii) an electronic fund transfer, or funds transmitted by or through a money transmitting business (or the proceeds of either of these); (iii) a cheque, draft or similar instrument payable through a financial institution; and/or (iv) any other form of financial transaction as determined by Photospire acting reasonably; and
(iv) neither the Customer nor any of its Associates is funded or owned in part or in whole by a person or entity that provides a Gambling Service to anyone located (whether a resident, citizen or otherwise) in a Forbidden Jurisdiction; and
(v) neither Photospire nor any of its Associates shall accept virtual goods and/or virtual currency (including, but not limited to, the use of cryptocurrency, cryptoassets and/or skins).
8.4 Photospire strictly prohibits any Customer Content and/or Banners promoting or endorsing, or in any way relating to use of cryptocurrencies (or any other virtual assets), which shall include any Customer Content or Banners that induce end-users to engage with gambling activities by staking bets using virtual goods and/or virtual currency. In the event of a breach of this provision, Photospire shall be entitled to take down the Customer Content and/or terminate this Agreement in accordance with clause 8.5.
8.5 Without prejudice to any other right that Photospire may have (under this Agreement or pursuant to applicable law), Photospire may terminate this Agreement with immediate effect, by serving notice, if it has a reason to believe that the Customer is in breach of: (i) any of the representations, warranties or undertakings given in clause 8.3; or (ii) clause 8.4.
8.6 Customer shall for the duration of this Agreement provide Photospire with a live API feed of all events offered by the Customer. The Customer acknowledges and agrees that Photospire shall be permitted to: (i) monitor the events, markets and odds offered by the Customer for the purposes of managing and/or improving Photospire’s services; and (ii) collect such data for such purposes from the Customer’s website(s) and publicly available sources.
8.7 Photospire maintains a ‘whitelist’ of websites which Photospire deems suitable for the display of gambling-related ads (the “Whitelist”), and such whitelist may be amended from time to time in Photospire’s absolute discretion. Photospire shall only display Banners on websites included in the Whitelist (“Approved Sites”) unless the Customer requests that Photospire displays a Banner (or Banners) on other websites not included in the Whitelist (“Unapproved Sites”) and Photospire agrees to such request. The Customer acknowledges and agrees that, as between the parties, the Customer shall be solely responsible for, and bear any adverse consequences arising from or relating to, the display of the Banners on any Unapproved Sites (and that Photospire shall have no liability whatsoever in connection therewith).
9.1 Each party represents and warrants to the other that it has, and will retain throughout the Term all rights, title and authority:
(i) to enter into this Agreement;
(ii) to grant to the other party the rights and licences granted in this Agreement; and
(iii) to perform all of its obligations under this Agreement.
9.2 The Customer hereby warrants, represents and undertakes to Photospire that:
(i) the Customer has the right to provide the Customer Content to Photospire for publication, without infringing any rights of any third party including, without limitation, IPRs;
(ii) the Customer Content complies at all times with all applicable laws, statutes, statutory instruments, contracts, regulations, advertising and marketing codes of practice in any of the jurisdictions where Banners are displayed;
(iii) the Customer Content does not contain any material that is obscene, defamatory unlawful, hateful, abusive, harmful, threatening, infringing, harassing, offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or age or in any way or contrary to any applicable law or regulation and/or causes damage or injury to any Person and/or property, and does not give access via hyperlinks to any property containing the same;
(iv) the Customer has obtained and paid in full for all necessary consents, licences, and permissions to advertise on the Site(s);
(v) the Customer will and has complied with all necessary requirements, including obtaining all necessary consents, in order to comply with the Data Protection Laws, and its provision of Customer Data, and Photospire’s use thereof pursuant to the terms hereof, does not violate any third party right. For the avoidance of doubt, Photospire will not check or verify these consent records but assume that the Customer is managing their consents in accordance with the Data Protection Laws;
(vi) if the Customer Content contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or copy by which any living person is or can be readily identified, the Customer warrants that the Customer has obtained full consent in writing from such living person to make use of such name, representation and/or copy;
(vii) the Customer Content contains no viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
(viii) the Customer is and shall be solely responsible for fulfilling and dealing with any orders or enquiries relating to the goods, services or promotion to which the Banners and/or Customer Content relates;
(ix) the Customer will not sub-license, transfer, encumber, sell, rent or otherwise provide access to the Photospire Products (or any part thereof) and/or the Photospire Technology (or any part thereof) to any third party;
(x) the Customer will not reproduce, disclose, decompile, disassemble, reverse engineer, modify or create derivative works from the Photospire Products (or any part thereof) or use the Professional Services (or any part thereof) for any purpose other than as set forth in this Agreement;
(xi) the information provided by the Customer in the Pre-Contract Questionnaire is true and accurate and the Customer shall promptly inform Photospire if any of such information ceases to be true and accurate;
(xii) the Customer will not (and will not attempt to) in any way access, use or copy any part of the Photospire Products and/or Photospire Technology (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Photospire Products (or any part thereof) or otherwise permit access to the Photospire Products (or any part thereof) by a competitor of Photospire;
(xiii) neither the Customer nor any of its Associates, nor any of their respective beneficial owners, directors, or officers, nor to the Customer’s knowledge any agent or employee thereof:
(A) is nor in the past five (5) years has been a Sanctioned Person;
(B) has transacted any business directly or knowingly indirectly with any Sanctioned Person;
(C) has otherwise violated Sanctions; nor
(D) will, directly or indirectly, use the proceeds of this Agreement or lend, contribute or otherwise make available such proceeds to or for the benefit of any Sanctioned Person or in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity, including any party to this Agreement.
9.3 Photospire undertakes to use reasonable endeavours to use reasonable skill and care in carrying out all its obligations under this Agreement as well as maintaining the availability of the Photospire Products during the Term, but does not represent, warrant or undertake that the Photospire Products are entirely error-free or that it will be available (in whole or in part) at all times. Photospire expressly disclaims all statutory and/or implied warranties. The Photospire Products are provided ‘as-is’ basis and ‘as available’.
9.4 The Customer will fully indemnify and keep Photospire and its directors, officers and employees fully indemnified against all actions, proceedings, costs (including legal fees), damages, expenses, fines, losses (including loss of profits) penalties, claims (including any relating to Data Protection Laws), demands and liabilities directly or indirectly suffered or incurred Photospire (or its directors, officers or employees) howsoever arising from: (i) any alleged or actual breach by the Customer of clauses 7, 8 and/or 9.2(i); (ii) the display of any Banner(s) on any Unapproved Websites (provided that such display was requested by the Customer); (iii) the Customer’s alleged failure to pay any fees for rights, including public performance, guild fees, or other fees associated with Banners or Customer Content; and (iv) the use of any content or technology, other than a Banner or Customer Content, provided by the Customer, or anyone acting on its behalf in the performance of the Order Form (“Customer Representatives”). Further, the Customer shall be responsible for compliance with the terms of this Agreement by its Customer Representatives in connection with this Agreement, and the Customer’s indemnification obligation above shall extend to any acts, omissions, services and deliverables of its Customer Representatives.
9.5 Customer will provide Photospire with full co-operation in defending any claim or complaint concerning the Customer Content including providing evidence in support of advertising claims and copies of documentation evidencing the clearance of relevant underlying third party proprietary rights.
10.1 A party shall have and retain any and/or all IPRs in its Confidential Information.
10.2 Each party remains sole owner of the IPRs it owned prior to the execution of any Order Form. As between the parties, Photospire (and/or its licensors) shall have and retain any and/or all IPRs in and/or relating to the Photospire Products, the Photospire Data and work developed or created by Photospire in the course of providing Professional Services, Training Services, Programmatic Marketing Services and/or Support. Photospire hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicenseable licence for the period of the Term to use such work for its internal business purposes in the Territory on the same terms and conditions as the Photospire Products. This licence does not include a right for Customer to allow access and/or use such work by, or for the benefit of, any Person other than a User. The Customer is the sole owner of all IPRs in and to the Customer Data and the Customer Content.
10.3 For the duration of the Term, the Customer grants Photospire a worldwide, royalty-free, non-transferable licence to use, reproduce and represent the Customer trademarks and logos, and to display, reproduce, represent the Customer Content of the Banners: (a) on Sites forming part of the Photspire Network; and (b) on all documentation promoting the Photospire Products.
10.4 Customer shall have no rights and/or licences in and/or the Photospire Products other than the right to use them subject to and in accordance with this Agreement. Any rights that are not expressly granted by Photospire to Customer herein are hereby expressly reserved by Photospire.
10.5 Customer hereby assigns title, interest and rights in suggestions, enhancement requests, recommendations, and/or other feedback provided by Customer and/or Users in respect of and/or relating to the Photospire Products.
10.6 The Customer authorizes Photospire: (i) to collect, use, analyse and process the Customer Data, to combine the Customer Data with Photospire Data and Photospire Sourced Data and to perform the Professional Services for the Customer; (ii) to improve the Photospire Products, the Professional Services and other Photospire products, programs and/or services with Aggregated Customer Data; and (iii) to disclose Customer Data if required by law.
10.7 Customer has no right to (or attempt to do the following) and shall not allow and/or permit a third party to copy, reproduce, adapt, reverse engineer, decipher, decompile, disassemble, modify, and/or make error corrections to the Photospire Products, Photospire Technology and/or the Materials except as permitted under applicable law and/or Photospire (in writing).
11.1 Nothing in this Agreement shall limit or exclude the liability of either party (i) for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable), (ii) for fraud or fraudulent misrepresentation, (iii) in respect of any indemnities provided under this Agreement, and (iv) any matter in respect of which it would be unlawful to exclude or restrict liability.
11.2 Photospire shall not in any circumstances have any liability for any losses and/or damages which may be suffered by Customer which fall within any and/or all of the following categories:
(i) special losses and/or damages even if Photospire was or is aware of the circumstances in which such special damage could arise;
(ii) loss of actual or anticipated profits (direct or indirect);
(iii) loss of actual or anticipated revenue (direct or indirect);
(iv) loss of actual or anticipated savings;
(v) loss of goodwill;
(vi) loss of business opportunity;
(vii) loss of customers;
(viii) incidental, consequential and/or indirect losses and/or damages of any kind howsoever arising and whether or not they are foreseeable, foreseen or known;
(ix) loss of reputation; and/or
(x) damage, loss and/or corruption of data and/or information.
11.3 Subject to clauses 11.1 and 11.2, the total maximum aggregate liability of Photospire arising under, in relation to and/or in connection with this Agreement and/or any collateral contract (whether in contract, tort (including negligence) or otherwise) shall in no circumstances exceed an amount equal to the Fees set out in the relevant Order Form.
11.4 The Customer acknowledges that the provision of the Programmatic Marketing Services is not subject to any performance guarantees or promises including ranking positions on internet search engines or the number of searches, visitors or click-throughs.
11.5 Photospire is unable to ensure or guarantee the security of information transmitted over the Internet. Any information or data transmitted across networks not owned and/or operated by or on behalf of Photospire (including the Internet and the Customer’s network(s)) through the use of or in connection with the Photospire Products is at the Customer’s risk.
11.6 The Customer acknowledges and accepts the risk that third parties may generate impressions, clicks or other actions affecting the charges under the Agreement for fraudulent or improper purposes. Photospire shall have no responsibility or liability to the Customer in connection with any third party click fraud or other improper actions that may occur.
11.7 All references to “Photospire” in this clause 9 shall include Photospire, its affiliates, employees, contractors and suppliers of Photospire, all of whom shall have the benefit of the exclusions and limitations in this clause 9.
12.1 This Agreement shall (unless otherwise terminated in accordance with this Agreement) commence on the Effective Date and shall be effective for the Term.
12.2 Customer or Photospire may terminate this Agreement effective from the end of the Initial Term or any Renewal Term thereafter by giving not less than thirty (30) days’ advance written (or email) notice, such notice to expire at the end of the then current Term.
12.3 Without affecting any other right and/or remedy available to it, Photospire shall be entitled to suspend its performance of its obligations under the Agreement and/or terminate the Agreement with immediate effect by giving written notice to Customer if: (i) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 5 Working Days after being notified in writing to make such payment, (ii) Photospire deems that the Customer’s use of cryptocurrency, cryptoassets and/or skins via the provision and/or advertisement of its products and/or services directly or indirectly causes, or may cause, any detriment to Photospire’s reputation, brand and/or goodwill; (iii) Customer is or becomes a Sanctioned Period; (iv) Customer otherwise becomes a person with whom it is unlawful for Photospire to transact business under Sanctions applicable to Photospire from time to time, without giving effect to choice of law provisions of this Agreement or any Photospire laws applicable to Customer and/or (ii) Customer breaches 9.2.
12.4 Without affecting any other right and/or remedy available to it, either party may terminate this Agreement with immediate effect by giving notice to the other party if the other party (i) the other party commits a material breach of a term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so, (ii) (a) ceases or threatens to cease to carry on its business or substantially the whole of its business other than for the purposes of amalgamation or reconstruction without insolvency, or (b) has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (other than for the purposes of amalgamation or reconstruction without insolvency) or (c) makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over any of its assets, or a court or arbitrator with authority to so determine, determines that the debtor is unable to pay its debts.
12.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
12.6 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations and/or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
12.7 On termination for any reason (i) all rights and licences granted to Customer under this Agreement shall cease, (ii) Customer shall cease all activities authorised by this Agreement, (iii) Customer shall immediately pay to Photospire any sums due to Photospire under this Agreement, and (iv) Customer shall immediately destroy or return to Photospire (at Photospire’s option) Materials and Photospire-supplied items then in its possession, custody or control and, in the case of destruction, certify to Photospire that it has done so.
13.1 Photospire reserves the right to amend these ToS from time to time.
13.2 The provisions of this clause 13.2 shall apply if Customer is a sports team, league or federation. Photospire shall have the right to place cookies (or other tracking technology) on the Customer’s digital properties for marketing (and associated analytics) purposes to track and collect information for the purposes of identifying individual visits to the Customer’s digital properties (“Visitor Data”). The parties agree Visitor Data shall include without limitation device information (including identifiers and operating system information), browser information, cookie ID, email address, new/return visit, IP location, referring page and section/page URL viewed. Customer agrees to provide facilities (including a consent management platform) and take all necessary steps (including without limitation providing users with all required information, collecting all necessary consent, and providing the opportunity to withdraw consent) to allow Photospire to collect Visitor Data and place cookies (or other tracking technology) on Customer’s digital properties for use pursuant to this clause in full compliance with Data Protection Laws. Customer undertakes to cooperate with Photospire, and to make any changes as may be required from time to time, in order to ensure that the Visitor Data is and continues to be collected in full compliance with Data Protection Laws.
13.3 If there is conflict/ambiguity between a ToS provision and a Schedule provision, the ToS provision shall prevail. If there is a conflict/ambiguity between (a) a ToS and/or Schedule provision and (b) an executed Order Form or SoW provision, then (a) shall prevail (unless expressly stated otherwise in the applicable executed Order Form or SoW. The Agreement provisions shall always prevail over Customer purchase orders and/or other Customer documentation even if they says otherwise.
13.4 No failure and/or delay by a party to exercise any right and/or remedy provided under this Agreement and/or by applicable law shall constitute a waiver of that and/or any other right/remedy, nor shall it prevent and/or restrict the further exercise of that and/or any other right and/or remedy.
13.5 This Agreement contains the entire agreement between the parties relating to its subject matter and supersedes all prior agreements, arrangements and understandings between them relating to that subject matter except as expressly stated in this Agreement.
13.6 Each party does not rely on any statement, representation, undertaking, assurance and/or warranty (whether it was made negligently or innocently and whether in writing) of any Person (whether a party to this Agreement or not) (Representation) other than as expressly set out in this Agreement. The only rights and remedies available to it arising out of and/or in connection with a Representation shall be for breach of contract as expressly provided in this Agreement.
13.7 An Agreement provision is not enforceable by, (to be) relied upon or intended to benefit, any Person who is not a party to this Agreement.
13.8 No Agreement variation shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.9 A party shall only be entitled to assign its rights under this Agreement with the prior written consent of the other party, except that Photospire shall be entitled to assign its rights under this Agreement without consent to an Associate or a purchaser of all or a substantial part of its assets, business or undertaking.
13.10 Photospire may delegate the performance of any of its obligations hereunder to third parties without the Customer’s consent, provided however that Photospire shall remain liable in contract for the provision of the Photospire Products notwithstanding such delegation.
13.11 Photospire may (i) use Customer’s name and logo in accordance with Customer’s branding guidelines supplied to Photospire in its marketing, PR and sales materials and activities, and (ii) develop a Customer case study to be included in such materials and activities.
13.12 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
13.13 A party shall not be in breach of this Agreement nor liable for delay in performing, and/or failure to perform, any of its obligations under this Agreement (excluding Customer’s payment obligations), if such delay and/or failure results from events, circumstances or causes beyond its reasonable control such as failure of part of the power grid, ISP equipment failure, host equipment failure, security attack (e.g. DoS, phishing), malware attacks and infections, communications network failure, default of Photospire suppliers or contractors (Force Majeure).
13.14 Notices (including invoices) under this Agreement will be in writing. Notices may be given, and will be deemed received (i) by pre-paid first-class post: on the second Working Day after posting, (ii) by hand: on receipt of a signature at the time of delivery, (iv) by email 24 hours from delivery if sent to the correct email address and no notice of delivery failure is received or on receipt of confirmation of receipt from the recipient. Notices will be sent to the email address or postal address of the parties as set out in the Order Form. A party may change the address and email address to which notices are to be delivered by giving not less than 7 Working Days’ notice to the other party. This clause shall not apply to the service of any proceedings or other documents in any legal action, arbitration or other method of dispute resolution.
13.15 Subject to clause 13.16, any dispute arising out of or in connection with this Agreement shall first be escalated to the parties’ Contract Managers. If the dispute remains unresolved for 5 days, it shall be referred to a senior executive of each party who shall attempt resolution through negotiations. If the dispute remains unresolved for a further 5 days, either party may refer the dispute to the English courts. This clause shall not restrict a party from initiating any proceedings in respect of a matter where that party has reasonable cause to do so in order to avoid damage to its business and/or to protect or present any right of action it may have, and/or from applying for and/or obtaining emergency or interlocutory relief.
13.16 This Agreement and any dispute and/or claim arising out of (or in connection with) it, its subject matter and/or formation (including non-contractual disputes and/or claims) shall be exclusively governed by and construed in accordance with English law and shall be subject to the exclusive jurisdiction of the English Courts.